We are finishing up our discussion of a case currently before the U.S. Supreme Court that addresses privacy and GPS tracking devices. The case involved a suspect in a drug trafficking investigation. Police placed a GPS tracking device on his car and followed his movements all day, every day for four weeks. They eventually were able to convict him of various drug charges.
The Court has spent a good deal of time working on issues of police, technology and the Fourth Amendment right to be let alone. The “leading” case for electronic tracking devices was decided 30 years ago and involved a beeper. That case produced the rule that movements along public streets are not subject to a reasonable expectation of privacy.
One Constitutional scholar points out that for decades the Court has applied the “reasonable expectation of privacy” test and that the test allows the government too much leeway. If the government expands the area in which privacy cannot be expected, the test will allow it. Right now, there should be no expectation on public roads or in public places. But technology continues to blur the lines between private and public.
This scholar next argues that the very term “reasonable expectation of privacy” is confusing. The question should not be what people think should be private; rather, it should be what we determine the Fourth Amendment should protect.
He recommends that the Supreme Court should not use this opportunity to debate the meaning of “reasonable expectation of privacy.” Instead, the Court should determine if the use of the GPS tracking device — particularly the 24/7 monitoring — is such an intrusion into a person’s life that it falls within the Fourth Amendment restrictions.
Source: ABA Journal, “Keeping up with the Joneses — How far does the ‘Reasonable Expectation of Privacy’ go?” Erwin Chemerinsky, Nov. 1, 2011